Big Win for Joy Road THP Lawsuit

This case is a blast from the past – and on into the future. “Hey, Hey, My, My, Rock and Roll Will Never Die”.

For many years the public and some Review Team Agency have complained that the CDF THP Review policy was did not comply with CEQA mandates. This case supports that position and establishes law that will affect the THP Review process (THPs, NTMP, NOIs, etc.) and also the application of CEQA standards to Neg. Decs. and EIRs.

This ruling will effect: THPs, NTMPs, NOIs, EIRs (Sonama County GP EIR 2020), Conversion of forestland to vineyard use, and all CEQA functional equivalent processes (TMDLs and Action Plans, other Water Quality Control Plans), DFG 1600 permitting processes, and Water Rights adjudications. .

Read the case (attached) – Outlined Review of issues below:

This case involves a Timber Harvest Plan, written by Scott Butler, that was originally returned for 35 problems and inconsistancies, and then later re-filed. THPs have often presented problems for the public as a constantly moving target, where substantial changes are made and pages changed or added (27 pages in this case) – after the initial noticing.

Noticing – Public Notice

CDF argued that CEQA noticing rules do not apply to the Forest Practice Act – THP Review process.

The Court found that re-niticeing is mandated, under CEQA, if new information is added to the file or the file is substantially changed – including the replacement of pages or adding maps

In this case the Court found: 1) Significant new information was added to the file – requiring re-noticing, 2) Where CDF claimed Fog Drip to be not a significant factor, evidence in the file disagreed – not substantial evidence to support CDFs conclusion and discussion added to the file – after the fact, 3) No evidence in the file to show that the consideration of future development in the area of the project warranted discussion in project Alternatives.

Forest Practice Act: To maintain productive timberlands, review project environmental effects – complying with CEQA, giving considerations to other factors.

Alternatives – Project Alternatives discussion must be inclusive of the full array of feasible alternatives.
This case left out effects, cumulative effects, related to development.

The Court ruled that CEQA applies to every aspect of the Forest Practice Act that is not specifically exempted by legislation.

CDF claims that it can not comply with CEQA, as a THP is a “dynamic” (as apposed to static) document.

The Court said that now Review Action precludes compliance with CEQA. The dynamic state state of a THP ( any changing CEQA document) and amendment to the original project, creating a substantially different project, necessitates re-noticing. Re-noticing assures the publics ability to comment to the “actual” project. A Certified Regulatory Program must comply with CEQA 30 day noticing.

Fog Drip

The Court found that there was no evidence to support CDF’s conclusion that loss of fog drip inputs into ground water, and water supply, were insignificant. Other evidence in the file noted loss of water supplied by Fog Drip (Wickham letter) and potential effects on ground water supply in a known water poor area.

Fair Argument – The Court also discussed the “Fair Argument” standard – related to public input. That this was a important issue, under CEQA, where the public raised the issue of Cumulative Impacts related to the issue of subdivision and building, future projects. That this issue needed to be addressed.

Substantial Evidence – includes: Enough relevant information (substantial evidence) reasonable reference from information added to the file that ‘”Fair Argument” can be made to support concluclusion(s) – even though other conclusions might be reached. Substantial Evidence includes facts, reasonable assumptions based on fact, and expert opinion supported by fact.

CDF did support argument with facts and professional opinion, but did not address the fog drip problem under Cumulative Impacts – and – the public was not allowed to comment on these findings as they appeared after the THP was approved. There was no public access to the necessary information as argument was added to the file late – after the fact.

The Court said that the sufficiency of an Official Response can be grounds to attack THP Review on the grounds of abuse of discretion.

Future Development – Water use and supply

The Court said that the THP must consider all Significant Environmental Impacts – regardless of whether those impacts would be attributable to the project or not

Northern Spotted Owl

Data, Survey, mapping — this information needs to be loaded into a THP in a way that the public can review and comment on – as should all pertinent data and info.

Alan Levine
Coast Action Group
P.O. Box 215
Point Arena, CA 95468

Victory for Water and Forest Issues

Dear all, The court of appeal has published the Joy Road decision  The
Sierra Club filed an amicus with financial help from all of you and more.
It is a big, big victory on a number of important issues.  For you, like
Helen, who have complained for so long about CDF’s habit of changing the
project as it goes along, it will have special significance. I’ll write some
more about its implications when I get a chance.  For now, it can be found
at  Enjoy!  Paul

Alan Levine
Coast Action Group

More on Healdsburg Ponds Case

This Clean Water Act litigation was brought by Jack Silver and Northern California River Watch. I was one of the expert witnesses on this case. We won the case in 9th District, and on appeal. I have asked Jack whether he believes Healdsburg will appeal our victory to the US Supreme Court. I think this case will be published and will become the law of the land. If Healdsburg appeals again they will have wasted yet more hundreds of thousands of dollars of their rate payers money. Those ratepayers should be very angry at how their officials have conducted this case and should toss out their elected officials for squandering so much money, all in order to avoid obtaining an NPDES permit, and bringing their wastewater discharge into compliance with the Clean Water Act.


Bob Rawson

Healdsburg’s Wastewater in Pond Ruled Illegal

For those of you who have been following our Healdsburg case the 9th Circuit Thursday affirmed our lower court victory. This case is the first from any Federal Circuit after the recent Supreme Court Rapanos wetland decision in July. The unanimous decision was written by the Chief Justice of the Ninth Circuit and sets significant precedence regarding the protection of adjacent wetlands. The decision can be viewed in our current or resolved cases sections.

warm regards ~ Jack

Wastewater in pond ruled illegal

by Bob Egelko, Chronicle Staff Writer
Friday, August 11, 2006

A federal appeals court, in a swift application of the Supreme Court’s new standards for federal regulation of wetlands, ruled Thursday that the city of Healdsburg illegally dumped sewage from a waste treatment plant into a pond whose waters seep into the Russian River.

The ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco was the first interpretation by any appellate court of the high court’s June 19 wetlands decision, said Charles Tebbutt, lawyer for the environmental group that sued Healdsburg.

The Supreme Court, in a pair of cases from Michigan, said federal regulators can prohibit the pollution of wetlands — thousands of ponds, marshes and other small or seasonal waterways — if the wetlands have a significant connection to navigable waters, like a river or a lake. That connection may consist of a direct intermingling of waters or an environmental link, such as acting as a filter for pollutants before they reach the larger waterway, the court majority said.

The standard was more limited than previous interpretations of federal authority, which extended to any wetlands that were part of the same water system as a navigable waterway. But the definition of the new guidelines was left largely up to lower courts.

In Thursday’s case, the appeals court said the pond where Healdsburg dumps its treated wastes “significantly affects the physical, biological and chemical integrity of the Russian River” and thus satisfies the Supreme Court’s standard.

Known as Basalt Pond, it was created by sand and gravel mining that lasted from 1967 to 1984. The pond, a half-mile long and a quarter-mile wide, is separated from the river by a levee. Pond water drains into the surrounding soil-and-rock aquifer, and seeps into the river within a few months. Chloride from the treated wastewater has been measured at about three times its normal level in the river at a point near the pond, the court said.

The city has discharged wastewater into the pond since 1978, with approval from the state and the quarry operator but without a federal permit as of 2001, when the suit was filed. After being sued, Healdsburg obtained a federal permit, which limits waste discharges, said Tebbutt, a lawyer with the Western Environmental Law Center.

Upholding a lower-court ruling that the permit was required, the appeals court said the pond is linked to the river in several ways: by direct mingling of underground waters, by surface flows when the river overflows the levee, and biologically, by supporting fish and bird populations that are part of the Russian River ecosystem. That is enough to show a significant connection, said Chief Judge Mary Schroeder in the 3-0 ruling.

Tebbutt, who represented Northern California River Watch, said the ruling requires the city to follow the limits in its federal permit, rather than returning to its previous higher discharge levels.

The city’s lawyer was unavailable for comment.

North Coast Regional Water Board Meeting

Meeting of Water Board and Public Forum

When: Wednesday, August 9, 2006, 8:30 am

Where: Regional Water Board, 5550 Skylane Blvd, Suite A, Santa Rosa CA

Consent Item: Bohemian Grove–Issuance of Wastewater Discharge Requirements for Treatment Facility.

Action Items:

1. Proposed WDRs for Willits Environmental Remediation Trust and the City of Willits Page Property Treatment System.
2. Consider Watershed-wide WDRs for THP activities by Green Diamond Resource Company.
3. Consider adopting a conditional waiver for the Scott River TMDL.

Enforcement Item: Consider whether to affirm, reject, or modify a complaint for administrative civil liability issued  on May 10, 2006 and other action in the matter of Kamath CSD Wastewater Treatment Facility for Violation of Cease and Desist Order.

Workshop on Bacteria Research in Five Marin and Sonoma County Estuaries

We are monitoring Bacterial Sources and Transport in Five Northern California Estuaries. Please join us for a Workshop on bacteria research in five Marin and Sonoma County estuaries at North Coast Regional Water Quality Control Board, DCJ Room Santa Rosa, California Tuesday September 19, 2006 9:00 am –12:00 pm.

We sampled water, suspended solids, and sediment across the freshwater-saltwater transitio three water samples one sediment sample leftright middle n zone at each estuary ten times from August 2004 to June 2005. Samples were analyzed for fecal coliform and E. coli, DNA fingerprinting is also being used to differentiate bacterial populations in estuary sediment, suspended solids, and water fractions. Our results provide water quality sampling and monitoring programs with a context for the interaction between sediment andfreshwater sources of bacteria, as well as salinity and seasonal influences on bacterial levels.

We look forward to discussing with you our results, the relationship between sediment and water column bacteria, and methods for statistical analysis. There is a map of the Russian River Estuary with the five sampling transectlocations. Each transect consists of three sampling locations (right, middle, and left) from which three water samples and one sediment sample were collected.

University of California Agriculture & Natural Resources Cooperative Extension Sonoma County 133 Aviation Blvd., Rm. 100 Santa Rosa, CA 95403-2810 Tel. (707) 565-262, Fax (707) 565-2623

Presenters: E. Robert Atwill, UCCE Specialist, DVM, Ph.D. David J. Lewis, UCCE Watershed Management Advisor

Protections for Storm Water and Nonpoint Source Discharges

Attached is a Notice of Board Member Quorum for the California Ocean Plan, Areas of Special Biological Significance (ASBS)
Special Protections to Address Storm Water and Nonpoint Source Discharges commencing on August 15, 2006, in Monterey, California.

State Water Resources Control Board
Executive Office Tam M. Doduc, Board Chair
1001 I Street • Sacramento, California 95814
• (916) 341-5611
P.O. Box 100 • Sacramento, California • 95812-0100 Fax (916) 341-5621
Linda S. Adams Secretary for Environmental Protection
Arnold Schwarzenegger Governor NOTICE OF BOARD MEMBER

QUORUM A quorum of the State Water Resources Control Board members may be present at the Public Scoping meeting for the California Ocean Plan, Areas of Special Biological Significance (ASBS) Special Protections to Address Storm Water and Nonpoint Source Discharges.
Tuesday – August 15, 2006 Monterey Conference Center
Steinbeck Forum Theater
One Portola Plaza
Monterey, CA 93940
Meeting Time – 9 a.m. – 12 p.m.

State Supreme Court Rules Counties Must Protect Coasts

by Steven Stein – THE GARDEN ISLAND

City and county governments have a responsibility to protect coastal waters, the Hawai Supreme Court has ruled.

In a 60-page unanimous decision issued Friday, the court delighted state environmental groups by requiring city and county governments to take an active role in coastal water regulation.

“This is a landmark decision,” said Judy Dalton, a Kauai Sierra Club spokesperson. “It puts counties on notice that yes indeed, they are responsible for what happens on our coastlines.”

The court justified its ruling by invoking Article XI, Section 7 of the state Constitution, which requires the conservation of coastal waters for the public.

“The courts have realized that the public-trust doctrine is a mandate in our Constitution that should finally give us some leverage to get the counties to comply,” Dalton said.

The ruling applies to the Hokulia resort development project near Kailua-Kona on the Big Island, which is owned by 1250 Oceanside Partners, a Honolulu development company.

In September 2000, heavy rains sent runoff from the development into nearby Kealakekua Bay, launching six years of conflict between Hokulia and local environmentalists.

On Oct. 30, 2000, the Kelly Plaintiffs, four Big Island environmentalists upset with the discharge into Kealakekua Bay, filed a complaint against Oceanside and the state Department of Health with the Big Island Circuit Court.

In 2002, Circuit Judge Ronald Ibarra sided with the Kelly Plaintiffs, ruling that the state and county had a responsibility to protect coastal waters near Hokulia.

Ibarra also found the state and county at fault for not protecting these waters. Although the high court’s ruling affirmed Ibarra’s decision to hold state and county governments responsible, it did not find the state and county at fault.

According to David Kimo Frankel, a lawyer for the Sierra Club who filed an amicus brief on behalf of Protect Keopuka Hana, a group of Native Hawaiian cultural practitioners and environmentalists who sued the state and Hawaii County, the state and county were let off the hook because “evidence wasn’t properly submitted.”

Representatives from Hokulia and the state and county were unavailable for comment yesterday.

Although the court’s ruling pleased Frankel, he said it will be difficult to enforce because of the state’s limited resources.

“We all know that the Department of Health and the Kauai Public Works Department don’t have enough staff to investigate and monitor developments to ensure they’re not polluting water quality,” Frankel said. “We’ll see if agencies take these responsibilities seriously. If the county and state don’t uphold the public-trust responsibility, there will be a lot more lawsuits.”